Fragomens Response to DOL on the recent PERM audits

See attached the response published by Fragomen after the recent attack on their PERM audits by US DOL.

The reason behind the attack

Ø Fragomen submitted a template form used by some of their offices to assist clients in complying with PERM processing. DOL noticed the form contained a legend advising clients to contact the firm if a U.S. worker applicant appeared potentially qualified.

Ø DOL reasoned that this rather innocuous advice suggested that lawyers may have dissuaded client companies from actually hiring U.S. worker applicants that the company determined were qualified during the PERM labor market test, and who, but for the lawyer's intervention, would have received a job offer.

Fragomen’s Response

Ø The regulations and decisions specifically protect the employer's right to counsel throughout the complex PERM process. Because PERM processing and evaluation standards differ markedly from normal recruitment in material ways, legal guidance is essential to ensure compliance.

Ø The right to counsel is a cornerstone of our legal system and is protected by the constitution and by the DOL’s own regulations which say that clients can rely on attorneys “throughout the labor certification process.

Ø Our attorneys’ central mission is providing counsel to our client companies in navigating a complex and confusing regulatory process.

Ø We render legal advice. We do not make employment decisions.

What is going on…

v Fragomen says they strongly disagree with their new rule which raises constitutional concerns.

v Fragomen is in active discussions with the Department regarding an agreement to release cases from audit and have cases return to the normal processing queue.

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